Opinion
Civil Action No. CCB-08-148.
February 25, 2009
MEMORANDUM
Pending is defendant's motion to dismiss or for summary judgment. (Paper No. 12.) Plaintiff has filed a response in opposition to the motion. (Papers No. 17, 19 and 20.) Upon review of the papers filed, the court finds a hearing in this matter unnecessary. See Local Rule 105.6 (D. Md. 2008). For the reasons stated below, defendant's motion, construed as a motion for summary judgment, shall be granted.
BACKGROUND
Plaintiff alleges he was infected with MRSA while he was a patient at the Bureau of Prisons ("BOP") Federal Medical Center in Lexington, Kentucky ("FMC-Lexington"), where he was admitted for treatment of aortic stenosis. Plaintiff claims he began experiencing symptoms "consistent with moderate to severe aortic stenosis and a blocked X-1 artery" in July 2006, after he fainted while running on a track at the Federal Correctional Institution in Cumberland, Maryland ("FCI-Cumberland"). (Paper No. 1 ¶ 46.) At first, the episode was attributed to dehydration, and he was told to rest and drink fluids. On July 25, 2006, an electrocardiogram revealed anterolateral ischemia with wave abnormality. Plaintiff claims the electrocardiogram results were reviewed by Dr. Mohamed S. Moubarek, the Clinical Director at FCI-Cumberland. In August 2006, after plaintiff underwent another heart examination and electrocardiogram, he was diagnosed with a heart murmur.
MRSA or Methicillin Resistant Staphyloccocus Aureus is a strain of staph that is resistant to the broad-spectrum antibiotics commonly used to treat staph infections, which can be fatal. See http://www.mayoclinic.com/health/mrsa.
Plaintiff was released from prison on October 24, 2008. ( See Papers No. 18-20.)
On October 12, 2006, plaintiff was sent to the local hospital in Cumberland, Maryland, where he was given an echo cardiogram and diagnosed with moderate to severe aortic stenosis and a partially blocked lower descending artery. No further testing was performed until February 15, 2007, in response to an administrative remedy filed by plaintiff. On that date, plaintiff was seen by Dr. Juan Pittaluga in Martinsburg, West Virginia, who — after reviewing the previous electrocardiograms and echo cardiogram — recommended a heart catheterization based on the previous test results and his examination of plaintiff.
Plaintiff alleges the BOP failed to schedule additional testing or a heart catheterization until he filed an administrative complaint regarding the delay. On March 27, 2007, plaintiff received a left and right heart catheterization and a coronary angiograph at Winchester Medical Center, performed by Dr. Pittaluga, resulting in a recommendation for an aortic valve replacement and a single-vessel bypass of the left anterior descending artery. Plaintiff alleges that Dr. Pittaluga recommended the procedures on an emergency basis and ordered plaintiff admitted to the hospital for purposes of performing the procedures because plaintiff's condition made him "at risk for sudden death." (Paper No. 1 ¶ 59.) Plaintiff claims that Dr. Moubarek overruled the opinion of Dr. Pittaluga and the attending cardiothoracic surgeon at Winchester Medical Center and required his return to FCI-Cumberland.
Plaintiff claims that his hospital discharge papers specified no lifting or strenuous activity, but, despite that directive, his request for a lower bunk bed — enabling him to avoid lifting himself up onto an upper bunk — was denied. He alleges that, on March 30, 2007, the arterial plug installed at the Winchester Medical Center began bleeding after he climbed onto his upper bunk bed. He states that his hospital discharge papers had advised that if he experienced bleeding, severe pain, or a sudden painful larger bruise at the catheterization site, he should lie down, apply pressure to the site and contact a rescue squad. Plaintiff claims he began experiencing symptoms of bleeding, severe pain, and a sudden painful large bruise at the site on March 31, 2007, so he requested medical attention. Plaintiff claims no action was taken in response to these symptoms or his request from March 31, 2007 to April 9, 2007. On April 11, 2007, over his objection, plaintiff was transferred to FMC-Lexington, a BOP facility. He claims he was misdiagnosed on April 12, 2007, by Dr. Louis Morales as having severe mitral valve stenosis.
On April 13, 2007, an electrocardiogram was performed on plaintiff after he complained of chest pain and pain radiating down his left-side jaw and arm. An emergency transfer to the University of Kentucky Medical Center ("UKMC") was ordered, and plaintiff's vital signs were monitored. Dr. Morales ordered an IV in preparation for plaintiff's travel to the hospital. Plaintiff claims an employee of the BOP named Higgins took an IV package from a cabinet, opened it, and left it on the counter while he discussed lunch orders with co-workers and looked up a phone number for a pizzeria. Plaintiff alleges that Higgins then left the room to collect money from staff members for the lunch orders and, upon returning to start the IV, Higgins did not change his rubber gloves before putting the needle in plaintiff's right hand. Plaintiff claims this needle "was later shown to be colonized with MRSA." (Paper No. 1 ¶ 85.)
While at UKMC, a MRSA infection was detected around plaintiffs' IV wound site. Plaintiff claims that signs of the MRSA infection first appeared on April 15, 2007 (Paper No. 17 at 5), though hospital reports indicate that the infection was first noted on April 18, 2007 (Paper No. 19, Ex. 2). Upon diagnosing plaintiff with a MRSA infection, UKMC began treating him with various medications including Vancomycin Hydrochloride, also administered by IV. The MRSA infection required delay in plaintiff's aortic valve replacement surgery. Plaintiff now claims permanent injury from the MRSA, consisting of muscle atrophy and nerve numbness in his left arm and left hand, acute thrombosis (blood clot) in a vein of his left arm, destruction of veins in his left and right arms, and nerve injury around his left elbow. ( See Paper No. 1 ¶ 106; Paper No. 19, Ex. 5; Paper No. 20, Anwar Report.)
Separately, plaintiff also claims he was wrongfully deprived of his property by BOP employees while he was an inmate at FCI-Cumberland. (Paper No. 2.) On the afternoon of March 23, 2007, because of an apparent assault and battery of plaintiff by another inmate, plaintiff was taken to the prison's Special Housing Unit ("SHU"). Approximately ten minutes later, pursuant to BOP procedures, a prison officer then went to plaintiff's regular housing area, removed all of the items which were stored in plaintiff's locker, and placed them in a laundry room inaccessible to inmates. That evening, a different officer inventoried the property that had been collected. Three days later, on the afternoon of March 26, plaintiff was released from the SHU, at which time he inventoried his property in the presence of an on-duty SHU Property Officer. It appeared to plaintiff that 50% of his property was missing, and he noted this on the property form. (Paper No. 12, Ex. 3 ¶ 7, Ex. 3A at 1.) Plaintiff claims that the missing property is worth $1,455.70, and has submitted an itemized list with receipts in support of this claim. ( See Paper No. 12, Ex. 1D.) He alleges that this loss of property was the direct result of negligence by BOP personnel.
See Paper No. 12, Ex. 3A at 2 ("When an inmate is placed in special housing status, that inmate's property is to be secured as soon as possible. . . . When the property is not immediately removed from the inmate's regular housing area, staff is to ensure that the property is placed in the inmate's locker and is secured with a Captain's lock (not the inmate's own lock).").
STANDARD OF REVIEW
A motion for summary judgment is governed by Fed.R.Civ.P. 56(c) which provides that:
[Summary judgment] should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to a judgment as a matter of law.
The Supreme Court has clarified that this does not mean that any factual dispute will defeat the motion:
By its very terms, this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.Anderson v. Liberty Lobby, Inc., 477 U. S. 242, 247-48 (1986) (emphasis in original). The court has an obligation to ensure that factually unsupported claims and defenses do not go to trial. See Felty v. Graves-Humphreys Co., 818 F.2d 1126, 1128 (4th Cir. 1987) (citing Celotex Corp. v. Catrett, 477 U. S. 317, 323-24 (1986)).
ANALYSIS
Under the Federal Tort Claims Act (FTCA), the United States is liable, as a private person, for "injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting under the scope of his office or employment." 28 U.S.C. § 1346(b). As a waiver of sovereign immunity, the FTCA is to be narrowly construed. See United States v. Nordic Village, Inc., 503 U.S. 30, 34 (1992). If the conduct complained of amounts to negligence "in accordance with the law of the place where the act or omission occurred," the United States may be held liable. 28 U.S.C. § 1346(b)(1). In analyzing plaintiff's medical malpractice claim, this court must apply the law of the state where the alleged negligent act occurred. See Rayonier, Inc. v. United States, 352 U.S. 315, 319 (1957); Florida Auto Auction of Orlando, Inc. v. United States, 74 F.3d 498, 502 (4th Cir. 1996).
A. Medical Malpractice Negligence Claim
The alleged negligent conduct with respect to plaintiff's medical care occurred in Kentucky; therefore, Kentucky law applies to this claim. Under Kentucky law, a plaintiff asserting a negligence claim has the burden of establishing "[1] duty, [2] breach, and [3] consequent injury." Grubbs ex rel. Grubbs v. Barbourville Family Health Ctr., P.S.C., 120 S. W. 3d 682, 687 (Ky. 2003). "The absence of any one of the three elements is fatal to the claim." M T Chem., Inc. v. Westrick, 525 S. W. 2d 740, 741 (Ky. 1974) (quoting Illinois Cent. R.R. v. Vincent, Ky., 412 S. W. 2d 874, 876 (1967)). For medical malpractice negligence claims in particular, the physician's duty of care is described as "the duty to use the degree of care and skill expected of a competent practitioner of the same class and under similar circumstances." Grubbs, 120 S. W. 3d at 687. To establish a breach of that duty, therefore, a plaintiff must "prove that the treatment given was below the degree of care and skill expected of a reasonably competent practitioner and that the negligence proximately caused the injury or death." Miller ex rel. Monticello Banking Co. v. Marymount Med. Ctr., 125 S. W. 3d 274, 287 (Ky. 2004) (citation and alteration omitted). To establish that the breach was a proximate cause of his injury, the plaintiff must prove that the breach was a "substantial factor" in bringing about the harm. Id.; see also Deutsch v. Shein, 597 S. W. 2d 141, 144 (Ky. 1980) (quoting Restatement (Second) of Torts § 431, Comment a (1965)).
For purposes of the FTCA, the only properly exhausted medical malpractice claim before this court is plaintiff's allegations concerning the improper IV administration and his subsequent MRSA infection and arm and hand injuries. To the extent other medical malpractice claims (originating in Maryland) are mentioned in the complaint, they have not been properly exhausted for purposes of the FTCA and will not be considered. ( See Paper No. 12 at Ex. 1.) Accordingly, for plaintiff to prevail on his medical malpractice claim, he must prove that the standard of care for infection control at FMC-Lexington was breached by the IV administration and that the breach was the "substantial" cause of his MRSA infection. Plaintiff has failed to prove either element.
Regarding the element of breach, while plaintiff has put forward allegations of negligence that, if true, are troubling, he has not put forward any evidence to substantiate his claims. It is well established in Kentucky that, to prove a breach in a medical malpractice negligence case, the plaintiff must substantiate his allegations with expert medical testimony, unless the alleged negligence is so obvious that it would be apparent to the average layperson. Nalley v. Banis, 240 S. W. 3d 658, 660-61 (Ky.Ct.App. 2007). With allegations of infections stemming from improper handling of medical equipment like IV needles, "laypeople do not `have sufficient general knowledge to recognize that infection . . . [is] the result[] of negligence.'" Id. at 661 (quoting Harmon v. Rust, 420 S. W. 2d 563, 564 (Ky. 1967)). Plaintiff offers in support of his negligence claim reports by UKMC and Dr. Samina Anwar, as well as statements from his medical records made by Dr. Morales. ( See Paper No. 19, Ex. 5; Paper No. 20 ¶ 7 Anwar Report.) However these reports and statements only verify that plaintiff is suffering from muscle and nerve problems in his arms and hands; they offer no expert opinion on whether the standard of care used by medical personnel at FMC-Lexington on April 13, 2007 was below that expected of a reasonably competent practitioner acting in similar circumstances. Therefore, plaintiff has failed to sufficiently prove the second element of his claim.
Even if this court were to take plaintiff's allegations of negligence as true despite that absence of proof, plaintiff has still failed to prove that either his MRSA infection or his later injuries were substantially caused by that negligence. Plaintiff claims that his MRSA infection first appeared at the IV wound site on April 15, 2007, two days after he was administered the IV at FMC-Lexington, which — given the apparently short incubation period of MRSA — would suggest that he contracted MRSA at FMC-Lexington. (Paper No. 17 at 5.) Medical records from UKMC are not available for that date, however; the earliest date on which hospital personnel appear to have noted the MRSA infection is April 18, 2007, five days after he was administered the IV, which would suggest that plaintiff may have been infected with MRSA at UKMC. (Paper No. 19, Ex. 2.) Additionally, as Dr. Moubarek states in his affidavit, "it is not uncommon for a person to infect themselves with MRSA and given how pervasive MRSA is, it is difficult to determine the cause of such an infection." (Paper No. 12, Ex. 2 ¶ 19.) Given that plaintiff was at two different medical facilities before his MRSA infection appeared, each with multiple opportunities for such an infection (including self-infection) to occur, this court cannot conclude that the IV administration at FMC-Lexington was a substantial factor in causing plaintiff's MRSA infection. While it is conceivable that the IV administration may have been a contributing cause of the infection, "[t]he bare possibility of causation will not suffice." Reams v. Stutler, 642 S. W. 2d 586, 588 (Ky. 1982).
Dr. Moubarek claims that "it is highly unlikely that a patient would not present with a MRSA infection for several days . . . after being infected." (Paper No. 12, Ex. 2 ¶ 19.)
Moreover, there is no indication that plaintiff's current hand and arm problems were substantially caused by the IV administration. As mentioned above, plaintiff not only claims that negligent IV administration led to his MRSA infection, but that his MRSA infection then led to permanent injury consisting of muscle atrophy and nerve numbness in his left arm and left hand, acute thrombosis (blood clot) in a vein of his left arm, destruction of veins in his left and right arms, and nerve injury around his left elbow. The pieces of evidence plaintiff has put forward, however, do not tend to show that his injuries were the ultimate result of the MRSA. Rather, they tend to cast doubt upon that allegation. The statements by Dr. Morales, for example, suggest that plaintiff's hand and arm problems may be due to carpal tunnel syndrome related to plaintiff's guitar playing (Paper No. 20 ¶ 7), and plaintiff's own medical expert, Dr. Anwar, states in her report, "I am not sure what is the etiology of this problem in this patient as he has a history of basilic venous thrombosis on the left side in the past" (Paper No. 20, Anwar Report at 2). Indeed, the potential causes of plaintiff's injuries are many, and include the MRSA treatment itself, a treatment selected and administered by UKMC personnel. In light of the statements of both Dr. Anwar and Dr. Morales, as well as Dr. Moubarek's sworn statement that plaintiff "has no permanent injury from his infection" (Paper No. 12, Ex. 2 ¶ 19), this court simply cannot conclude that the MRSA infection was the substantial factor causing these injuries.
One side effect of IV-administered Vancomycin Hydrochloride is thrombophlebitis (vein inflammation related to a blood clot). See http://www.fda.gov/medwatch/safety/2007//SEP_PI/Vancomycin_PI.pdf.
Because the plaintiff has not put forward evidence establishing that his injuries were substantially caused by the MRSA infection, or that the MRSA infection was substantially caused by the IV administration at FMC-Lexington, plaintiff has failed to prove the third element of his claim. His failure to prove both proximate causation and breach warrant summary judgment in favor of the defendant on the medical malpractice claim.
B. Property Claim
The alleged negligent conduct with respect to plaintiff's property occurred in Maryland; therefore, Maryland law applies to the claim. See Starns v. United States, 923 F.2d 34, 37 (4th Cir. 1991). In Maryland, as in Kentucky, "[t]he basic elements of a negligence claim are: (1) a duty or obligation under which the defendant is to protect the plaintiff from injury; (2) breach of that duty; and (3) actual loss or injury to the plaintiff proximately resulting from the breach." Bobo v. State, 697 A.2d 1371, 1375 (Md. 1997). Whether or not a duty exists is a question of law to be determined by a court. See Remsburg v. Montgomery, 831 A.2d 18, 25 (Md. 2003) (quoting Muthukumarana v. Montgomery County, 805 A.2d 372, 387 (Md. 2002)). Regarding causation, it is not enough for plaintiff to allege that defendant was a possible cause of his injury or loss; plaintiff must put forward evidence showing it is more probable than not that the defendant's action caused his injury. See Fennell v. S. Maryland Hosp. Center, Inc., 580 A.2d 206, 211 (Md. 1990).
Defendant concedes that the statutory standards of care for the BOP encompass the duty of reasonable care to protect an inmate's property, see 18 U.S.C. § 4042, but asserts that this duty was not breached. (Paper No. 12 at 14.) Defendant contends that BOP personnel collected and secured all property that appeared to belong to plaintiff, and that any lost property is due to plaintiff's failure to carry out his corresponding duty to properly secure his property in his locker.
This Code provision reads, in pertinent part:
The Bureau of Prisons, under the direction of the Attorney General, shall — (2) provide suitable quarters and provide for the safekeeping, care, and subsistence of all persons charged with or convicted of offenses against the United States, or held as witnesses or otherwise; [and] (3) provide for the protection, instruction, and discipline of all persons charged with or convicted of offenses against the United States.
It is well established that the property rights of prison inmates are limited. See Bell v. Wolfish, 441 U.S. 520, 553 (1979) (prohibition against receipt of packages permissible under certain circumstances); Hanvey v. Blankenship, 631 F.2d 296, 297 (4th Cir. 1980) (per curiam) (confiscation of currency); Bannan v. Angelone, 962 F. Supp. 71, 73-74 (W.D. Va. 1996) ("Unless other rights such as religion or speech are involved, jails may . . . constitutionally disallow the possession of personal property"). Insofar as plaintiff enjoyed a limited right to the property he obtained while in prison, the primary responsibility for protecting that right fell on him, not the BOP. See BOP Policy Statement 5580.07 (stating that, when provided with secured storage space such as a locker, "the individual inmate has responsibility for securing personal property"). While it may be the case that the BOP also owed an ordinary duty of care with respect to plaintiff's belongings when it transported them to a different location during plaintiff's stay at the SHU, it cannot be claimed, in light of the express terms of BOP Policy Statement 5580.07, that the BOP owes a duty to act as absolute guarantor of all of the plaintiff's personal property. The BOP's duty here was limited to retrieving items it understood to be plaintiff's property "as soon as possible" after moving him to the SHU, securing those items during his stay in the SHU, and returning them to him at the end of his stay. See Paper No. 12, Ex. 3A at 2. This is exactly what BOP personnel did. Therefore, on the facts before it, this court finds no breach. Cf. Beckwith v. Hart, 263 F. Supp. 2d 1018, 1022-23 (D. Md. 2003) (holding that the duty of ordinary care owed to plaintiff under 18 U.S.C. § 4042 "does not encompass the notion that every injury of any degree that befalls a federal prisoner is compensable under the FTCA").
Indeed, the BOP rationale behind allowing prison inmates to have secured storage spaces appears to be limitation of its liability for damaged or lost property. Id.
Furthermore, even if there were a breach, plaintiff has failed to put forward evidence proving that the breach was the proximate cause of his loss of property. Plaintiff has alleged, in so many words, that he owned personal property prior to being placed in the SHU that was missing when he later returned from the SHU. Assuming this allegation is true, it does not comprise evidence that the BOP more likely than not caused his property to be lost through its negligence. Moreover, plaintiff's own accounting of his lost property makes it difficult to assume the truth of this allegation. The itemized list plaintiff provided shows that all the items now claimed to be missing were purchased at least seven months — and as much as three years — before his placement in the SHU, and many of them were perishable food items. No evidence has been presented showing that all or even some of these items were still in plaintiff's possession as of March 23, 2007, the date the alleged negligence occurred.
For instance, plaintiff lists among his missing items "fresh mack[e]rel" purchased in July 2006. (Paper No. 12, Ex. 1D.)
Given the evidence before this court, I conclude as a matter of law that plaintiff cannot establish any property injury that resulted from the breach of a duty of care by the defendant. Thus, defendant is entitled to summary judgment as to plaintiff's property claim.
CONCLUSION
For the foregoing reasons, defendant's motion for summary judgment will be granted. A separate Order follows.ORDER
For the reasons stated in the foregoing memorandum, it is this25th day of February, 2009, by the United States District Court for the District of Maryland, hereby ORDERED that:
1. Defendant's motion to dismiss or for summary judgment, construed as a motion for summary judgment, IS GRANTED;
2. The Clerk SHALL SEND a copy of the foregoing memorandum and order to plaintiff and counsel of record; and
3. The Clerk SHALL CLOSE this case.